Updated: Nov 9, 2020
Vanmathi M, III year of B.A.,LL.B.
In India, the scenario of surrogacy is more ambiguous. On one hand, most of the religious preachers are against the practice of surrogacy. Because it is immoral and it is against religious practices and our culture, on the other hand, the infertile couple says it was a blessing to us and it gives a new ray of hope to live. The concept of surrogacy even mentioned in puranic stories such as Mahabharata, Lord Vishnu transferred an embryo from Devaki's womb to Rohini's womb and in the old testament of the bible; Sarah commissioned Hagar to bear a child with Abraham. Surrogacy is a moral policing where a woman gives a joy of motherhood to another; it is such a noble practice. In recent times, whatever the thing is moral, but something which destroys its good ideals and makes it profitable to mankind, likewise, surrogacy became commercial. It leads to exploitation of surrogate mothers and abandonment of children born out of surrogacy, import of human embryos and gametes.
There is no proper legislation to regulate surrogacy. So the government introduced two surrogacy regulation bills to ban commercial surrogacy and to protect surrogate mother and child born out of surrogacy. According to WHO reports in 2010, worldwide 48.5 million couples were unable to have a child of their own and those couples were suffering from infertility. Advancement in medical science brought a huge couple to try different medical methods to have a child.
In India, clinics have been offering Assisted Reproductive Technology (ART) services such as in-vitro fertilization, intrauterine insemination, gamete donation, intracytoplasmic sperm injection, preimplantation genetic diagnosis and gestational surrogacy. Here we discuss that the new regulation which violates the fundamental rights or not is it shows discrimination among the single and unmarried couple and other more interesting things which have to be discussed in this article.
Surrogacy and its types
Surrogacy means the woman (the surrogate) offers to carry a baby through pregnancy for the intended couple and then return the baby to the intended parents when it is born.
They are two types of surrogacy. They are:
1) Traditional surrogacy means insemination of the surrogate naturally or artificially with the semen of the male partner of the childless couple. A child born from this method is genetically related to mother and also have several social, ethical and legal implications.
2) Gestational surrogacy means an embryo from the ovum and sperm of intended couple is fertilised in the test tube and transferred to the womb of surrogate and child born through this method not having a genetic similarity to the surrogate mother.
The practice of surrogacy without the legal framework
There is no separate act to regulate surrogacy. This leads to commercialization of surrogacy. The commercial surrogacy was severely condemned by the issue in 2014, Australian couples refused to accept one of their biological twins born through surrogacy because of the gender of the child. Many poor women in India became surrogate mothers repeatedly even though grave implications to their health. In Babi Minaj vs. Union of India, the Supreme Court held commercial surrogacy was valid. In Jan Balaz vs. Anand municipality, Gujarat High court followed the precedent of the apex court upholding commercial surrogacy. The High court stated that commercial surrogacy was legal in India as there was no law which bans surrogacy agreement or womb lending.
In 2009, Law Commission of India submitted its report regarding surrogacy be regulated through suitable legislation and recommended only altruistic surrogacy be legalised and total banning of commercial surrogacy. The Surrogacy (Regulation) Bill, 2019 was passed by Lok Sabha and moved to Rajya Sabha. Rajya Sabha adopted a motion to refer the bill to the select committee. The committee analyses the best practices of surrogacy worldwide and what kind of Surrogacy India needs? In the UK, Netherlands, Ireland, Denmark, Belgium, South Africa, Australia, Canada, Greece only altruistic surrogacy is regulated by the government. In the United States, Argentina surrogacy requests are granted by specified independent surrogacy committees. In Russia, Ukraine and Thailand recognised commercial surrogacy as legal. In France, Germany, Sweden, Italy, Spain and Iceland banned all the forms of surrogacy.
The Surrogacy (Regulation) Bill, 2019-scope and objectives
The Surrogacy (Regulation) Bill was introduced by Dr.Harsh Vardhan, Ministry of Health and Family welfare in Lok sabha. It is a moral, ethical, social legislation as it protects the rights of a child born through surrogacy and gives protection to surrogate mothers from exploitation. The act of surrogacy is a blessing for many childless couples. This bill tries to balance both the interest of the parties. It means childless couples get what they want and nobody, the Surrogate mother and child born through surrogacy can suffer. The surrogacy is defined in this bill as it is a practice where a woman gives birth to a child on behalf of the intended couple intending to hand over the child after its birth to the intended couple.
1) Regulation of surrogacy
This bill recognised only altruistic surrogacy and it completely prohibits commercial surrogacy. The term Altruistic surrogacy means no monetary compensation is given to the Surrogate mother other than medical expenses and insurance coverage during the pregnancy. The term commercial Surrogacy means an act of Surrogacy procedure undertaken for monetary benefit or reward exceeding medical expenses and insurance coverage during the pregnancy.
2) When the Surrogacy is permitted by the appropriate Authority
(1) Intending couples suffer from proven infertility
(2)Altruistic purpose only, not for commercial purposes.
(3)Not for producing children for prostitution, sale or other forms of exploitation.
3) Intending couples-Eligibility criteria
Intending couples should have an eligibility certificate and essentiality certificate granted by the appropriate authority.
The Essentiality certificate granted by the appropriate authority when the intended couple fulfilled these conditions:
(1) One or both of the intended couples get the certificate of proven infertility from the District Medical Board.
(2) Order of parentage and custody of surrogate child passed by Magistrate's court.
(3) Insurance coverage for 16 months covering post-delivery complications of the surrogate.
The Eligibility certificate granted by the appropriate authority when the intended couple fulfilled these conditions:
(1) Couple be an Indian citizen and married for at least five years
(2) Age limit for husband (26 to 55) years old and for wife (23 to 50) years old
(3) Intending couple not to have a surviving child (biological, surrogate or adopted) except the child who is mentally ill or physically challenged or suffers from the life-threatening disorder.
4) Surrogate Mother - Eligibility criteria
The surrogate mother can obtain an eligibility certificate from appropriate authority by following these conditions:
(1) She should be a close relative of intending couple
(2) Married woman having a child of her own
(3)Age limit (25 to 35) years old
(4)Be a Surrogate only once in her lifetime
(5) Possess a certificate of medical and psychological fitness for surrogacy
(6) Surrogate mother cannot provide her gametes for surrogacy
5) Appropriate Authority
The Appropriate Authority shall be appointed by the state and central government. They have specified functions such as granting, suspending or cancelling the registration of Surrogacy clinics, investigating and taking action against those who breach the provision, recommending changes to the rules and regulations and enforcing standards of surrogacy clinics.
6) Registration of surrogacy clinics
Surrogacy clinics undertake procedures of Surrogacy only when they are registered by appropriate authority and registration is made by clinics within 60 days from the date of appointment of the appropriate authority.
7) National and State surrogacy board (NSB & SSB)
The National and State surrogacy board shall be constituted by the central and state government. The NSB has several important functions such as advising the central government on policy matters regarding surrogacy, laying down the code of conduct of surrogacy clinics and supervising the functioning of SSBs
8) Abortion and parentage of Surrogate
The written consent and authorisation of appropriate authority is necessary to abort a surrogate child the surrogate mother has an option to withdraw from surrogacy before the embryo is implanted in her womb. A child born through surrogacy will be deemed to be the biological child of the intended couple.
9) Offences and Punishments
The offences relating to surrogacy such as advertising commercial surrogacy, abandoning or disowning a surrogate child, exploiting Surrogate mothers, selling or importing human embryos or gametes for surrogacy, those offences are punished with improvement up to 10 years and fine up to 10 lakhs.
Violation of fundamental rights
This bill was subject to criticism by the Surrogate women in the country, because they get a stable income by exercising commercial surrogacy. This bill completely bans commercial surrogacy. It violates the fundamental right of freedom of profession of surrogate mothers under Article 19 (1)(g) of the Indian Constitution. This bill restricts single parents, unmarried couples, NRIs, OCIs and foreigners from surrogacy and it does not avail for them. It violates the fundamental right guaranteed under Article 14 (Right to Equality) of Indian Constitution. The Right to privacy included in Article 21, this right not only safeguards his privacy but also of his family, marriage, procreation, motherhood, childbearing and education. This bill put down the condition of who can practice surrogacy, how many times a couple may commission surrogacy.
The famous Bollywood stars have opted for surrogacy such as Actor Tusshar Kapoor and filmmaker Karan Johar has become a single parent of their surrogate child. Amir Khan has already had two children with his first wife Reena and then he got married to Kiran, this couple wanted a child and this not happened because of Kiran's miscarriage.so they decided to opt for surrogacy. Even Shah Rukh Khan and his wife have two children, but they wanted another child. But due to health issues of Gauri's Khan, they decided to opt for surrogacy. Now we relate those incidents with the above-mentioned bill. According to the condition of the bill, those incidents deemed to be invalid. Because this bill did not allow single parents or parents who already have children. But these incidents have happened before the introduction of the bill. Moreover, this bill has not become an act.
New concepts of Surrogacy Regulation Bill 2020
The single partner, homosexuals and live-in relationship are banned from practising surrogacy. It introduced a statutory blanket ban on commercial surrogacy under section 2(f) of 2020 bill. It widened the ambit of the legislation by permitting" intended woman", it means an Indian woman who is a widow or divorcee between the age of 35 to 45. Besides, the vague term mentioned in the 2019 bill was sold out by new legislation. The undefined term "close relative", it restricts the availability of Surrogate mothers and it was amended with a new term" willing women". The surrogate mother's insurance coverage extends to a period of 36 months covering post-delivery complications.
Surrogacy is a highly complex issue which deals with legal, social, emotional challenges. The aim of the Surrogacy Regulation Bill 2020 to remove certain vague and ambiguous terms and concepts mentioned in 2019 bill. This bill will bring a new form of practice of surrogacy in India. This bill gives hope, rights and duties to Surrogate mothers and children born through surrogacy. This bill does not want to discriminate against people, it was only done for the protection of surrogate mothers and children.